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HomeMy WebLinkAbout33935 / 86-96AESOLUTION NO. � � 86 RESOLIITION AUTHORIZING EXECUTION OF BOND PURCHASE AGREEMENT FOR SALE AT PAR AND CONVERSION TO FIXED INTEREST RATE OF $8,000,000 FIAATING RATE DEMAND ZNDUSTRIAL DEVEIAPMENT REVENUE BONDS, MORGAN PRODUCTS LTD. ISSUE, SERIES 1984, OF CITY OF OSHKOSH, WISCONSIN, PURSUANT TO SECTION 2.02(f) OF INDENTURE OF DECEMB£R 15, 1984, AS AMENDED; AND EXECUTION OF FZRST AMENDMENT TO LC7AN AGREEMENT AND SECOND AMENDME23T TO TRUST INDENTURE. PREAMBLE WHEREAS, the City of Oshkosh (the "City") is organized and existing under and pursuant to the Constitution and the laws of the State of Wisconsin, and is authorized by Wis. Stat. §66.521, as eupplemented and amended (the "Act"), to do, among other things, the following: (a) Issue industrial development revenue bonds in order to assist in financing of industrial facilities located within the boundaries of the Issuer, (b) To enter into revenue agreements with the owner and user of such facilities providing for revenues as defined and determined under the Act sufficient to pay the principal and interest on such revenue bonds, (c) To secure vuch revenue bonds by a pledge and assignmen� of such revenue� and of the rights of the City tander the revenuE agreeziient from said owner and user oi` �he industrial �acili�y and to receive otiier forms of assurances a°.d guarantees from other eligible participants and to a..,ign the same and the rights of the City thereun�er _a a tr�.istee on behalf of the bond2iolders and to enact a bond resolution and enter into the agreements and receive the security con- templated hereunder and to assign the same to a trustee on behalf of the bondholders upon the terms and condi- tions provided for therein to accomplish the purpose of the Act; and WHEREAS, the Common Council is the elected legislative body of the City; and SdHEREAS, the City, pursuant to the Act and kesolution 1 of the Common Council duly adopted and approved on December 27, 19II4, authorized �he issuance of $8,000,000 Floating Rate 1 Damand Industrial Development Revenue Bonds, Morgan Products Ltd. Issue, Series 1984, of City of Oshkosh (the "Bonds") and a loan of the proceeds thereof to Morgan Products Ltd., a Delaware corporation (the "Company"); and WHEREAS, the Bonds were issued by the City pursuant to and secur�d as provided in, a Trust Indenture dated as of December 15, 1984, as araended (the "Indenture"), between the City, as Tssuer, and National 47estaninster Bank USA, as Trustee (the "Trustee"), and the prUCeed.s from tha �ale of the Bonds were 3.oaned �o the Cc,lipany pursuan� to a Loan Agreement dated xs oP Decemi�er 15, 198� (1:he "Loan Aqree- ment") , by and be�we�n the City �a�:i tY�e Company, and used to finance the acruis;tic.m, rehab5.litation, equi.ppi.ng and installation by t`ie Comi�any of. a uoor and millwork manufac- turing faci.lity locatio:i in the City of Oshkosh, Wisconsin (the ��Project"); and WHEREAS, pursuant to §2.02(f) of the Indenture, the interest rate on the Bnnds will be established at a fixed annual interest rate (the "Fixed Interest Rate") on the interest payment date following delivery by the Company to the Issuer, the Tavstee, the Credit Facility Tssuer and Remarketing Agent (as defined in the Indenture), of (i) a notice that the interest rate on the Bonds will become fixed on a specified interest payment date (ehe "Notice"), and (ii) an opinion of nationalAy recognized bond counsel that the establishment of a Fixed Interest Rate will not cause interest on the Bonds to be subject to federal income taxation, and execution of a binding contract for purchase (and reoffering) at par of all outstanding Bonds by and among the Issuer, the Company and the purchaser of the Bonds (the "Opinion"); and WHEREAS, 6n iiay l, 1986, �he Coinpany delivered �o the City, as Issuer; the Trustee, the Credit Facility Issuer and the Remarketing Agent �he Notice and Opinion; and wiiEREAS, the Comgany has indicated to the City that tiCNB National Bank of North Carolina (the "PUrchaser") is willing to enter into a binding contract with the City and the Company on May 16, 1986, ior purchase on June 2, 1986 (the "Closing Date") of all of the outstanding Bonds (the "Bond Purchase Agreement") for reoifering at par by the Company with in�erest on the outs�anding principal amount of the Bonds from the Closing Date, as h�reinbefore defined at a fixed interest rate per annum as stated in trie Hond Purchase Agreement payable on the first day of June and December, commencing December 1, 1986, in accordance with �2.02(i) of the Indenture; and ra WEiEREAS, for purpoaes not inconsistent with the terms of the Indenture and the Bond Purchase Agreement, to cure certain ambiguities and correct and supplement certain provisions contained therein which are defective or incon- sistent therewith and with certain other provisions contained therein, to make certain other provisions in regard to matters or questions arising under the Indenture with respect to the fixing of the interest rate on the Bonds, none of which shall adversely affect the interest of the holders of the Series 1984 Bonds, tha City and the Trustee desire to amen� and �upplsxn�nt the Indemture by the S�cond Amendment to the Znaenture to be effective June 2, 1986; and WiiFRETG, f:he City and the Company, for purposes not incon�i :ten?. ��.'cYi the 2ndenture, the Loan Agreement and the Bond S'urchase Agreemen� and to cure certain ambiguities and correc� and supplemen� certa�n provisions contained in the I,oan Agreement which are inconsistent with the Bond Purchase Agreement and other provisions contained thezein and to make certain other provisions in regard to matters or questions arising in connection with the fixing of the interest rate, none of which shall adversely affect interest of the holders of the Bonds, desire to amend and supplement the Loan Agree- ment by the First Amendment to the Loan Agreement to be effective June 2, 1986; and WHEREAS, the execution of the Bond Purchase Agreement, the execution of the Second Amendment to the Indenture and the execution of the First Amendment to the Loan Agreement by the City as herein recited and provided, in the judgment of the Common Counail will serve the intended purposes and in all respects conform to the provisions and requirements of the Act, NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Oshkosh as follows: ARTICLE I Definitions and Construction Section 1.1 De£initions. All capitalized terms not defined herein shall have the same meanings as defined in the Indeniure as amended to the closing date o£ June 2, 1986, by and between the City and Trustee, the Loan Agreement, as amended to the closing date, and tlie Bond Purchase Agreement as hereinafter defined, all as on file with the City Clerk on the date hereof. 3 Saction 1.2 Construction. (a) Any reference herein to the "City," the "Issuer," the "Common Council," or to any officers, agents or representatives thereof, shall include those which succeed to their functions, duties or responsi- bilities pursuant to or by operation of law or �ho are lacafully perfo�ing their functions. Any reference to a section or provision o£ the "Wisconsin Laws" or "Wiscon- sin Statutes" shall includa such section or provision or chapter as from time to time umended, modified, revised suppleaented, or sup�rscde3, provided that no such amendment, modiiication, revisicns, supple�entation or supersession shall alter the oblig�tion to F�ay the principal of and premiwn, if any, on the Series 1984 Bonds in the amount �nd mar.ner, at the time, and from the sources provided in the Bond proceedings heretofore or herein taken, except as otherwise herein permitted. (b) Unless the context shall otherwise indicate, words importing the singular number shall include the plural number, and vice versa, the masculine includes the feminine, and the terms "hereof," "hereby," "here- to," "hereunder," and similar terms, mean this Resolu- tion. ARTICLE II Determinations Section 2.1 Representations and Warranties. The representations and warranti�s of th_ Issuer set forth in Section 1.4 of the Loan F..grrYemnnt, as a�nended, are true, correct and complete in all ma.terial respects on the date hereof and will be tr.ue, correct and complete in all material respects as of the Closing Date as it made on the Closing Date. Section 2.2 Authoritv of Citv. The Issuer has the power and au�hority to carry out and consummate the transac- tions contemplated by the Loan Agreement, as amended to date of closing, the Indenture, as amended to date of closing, and the Bond Purchase Agreement. Section 2.3 Bonds Duly Authorized. Executed and Delivered. The �onds were duly authorized, executed and delivered by the City. Section 2.4 Compliance with Law: No Default. To the best knowledge of the City, t2ie executian and delivery by the City of the Bonds, the Loan Agreement, the Indenture and 4 amendments thereto as heretofore or herein provided and the Bond Purchase Agreement, and compliance with the provisions thereof and hereof by the City, for the conversion of the Bonds to the Fixed Interest Rate, does not and will not conflict with, or result in the breach of any of the provi- sions, or constitute a deiault under, any constitutional provisions, statute, char�er, indenture, mortgage, deed of trust or other agreement or i:istrumtnL to which �he City is a party or by which it or i�s praper'cies is or. may be bound. Section 2.5 t?� �iti._g_G�ion Penciinq. There is no litigation pending or, �o tlze laYOwledge of the Citiy, threat- ened, against th� Cit}�, to rest.xain, enjoin o� ccn�.esting the execution and dc�livcr.y of th� Fi.�°sa Far�:;ndwen'c ta the Loan Agreement, the Second Av�ndn�eYa�� 'co the Indeiiture, ihe Bond Purchase Agreement, or the conve�_sion of the Bonds to the Fixed Interest Ra�.e. ARTICLE III Authorizations Section 3.1 Authorization of Execution and Delivery of Bond Purchase Aareement. The City Manager of the City is hereby authorized to execute and the City Clerk is hereby authorized to attest under the seal of the City in one or more counterparts, the Bond Purchase Agreement dated May 16, 1986, between Morgan Products Ltd., a Delaware corporation (the "Company") and NCNB National Bank of North Carolina, a national banking association organized and existing under the laws of the United States of America and authorized to do business in the State of Wisconsin (the "Purchaser") and the City, in substantislly the form on file with the City Clerk on the date hereof, with such changes therein, whether made prior to the execution thereof or thereafter, as shall be approved from time to tiae by such officers executing the same, such approval to be conclusi.vely evidenced by their executio.� thereof, and to deliver the same to the Company and the Bond Purchaser, all of the provisions of which, when executed and delivered by the City as authorized herein and by the other parties therein duly authorized, shall be deemed to be a part of this Resolution as fully and to the same extent as if incorporated verbatim herein. Such officers and all other officers and employees of the City are hereby authorized to execute such further agreements and documents an to take such further action as shall be necessary to carry out the intent and purposes expressed in the Bond Purch�xse Agreement and are fur.ther authorized to take such other steps and actions as may be required and necessary in order to eifec� the convereion of the Bonds to the fixed interes� rate. 5 Section 3.2 Authorization of Execution and Deliverv of Second Amendment to Trust Indenture. The City Manager of the City is hereby authorized to execute and the City Clerk is hereby authori2ed to attest under the seal of the City in one or more counterparts the 5econd Amendment to the Indenture in substantially the Yorm on file with the City Clerk on the date hereof, with such changes, alterations and corrections as m1�� be approved by the City Manaqer of the City, such approval to bs aonclusively presumed by the execution tiieseof; and such Seaqnd Amendment to the Indenture is hereby approved by tiie City and the Ci�y hereby authorizes and alrPC�6 thc City Clerk �o deliver to the Truetee, the Second Amenda�en� to the Trust Indenture, all the provisions of cahich, wixen executed and delxvered by the Trustee as author- ized herein and by the Ta�:e>tee duly authorized shall be deemed to be a part of this Resolution as fully and to the sama extent a:: if incorpor3ted verbatim herein. The City does hereby confirm and provide in the Indenture, as amended to the Closing Date, the terms, conditions, covenants, rights, obligations, duties and agreements to and for trie benefit of the holders of the Bonds as of the effective date of the Fixed Interest Rate, the City as Issuer, the Company and the Trustee. Section 3.3 Authorizations of Execution and Deliverv of First Amendment to Loan Agreement. The First Amendment to the Loan Aqreemealt in substantially the form on file with the City Clerk on the date hereof effective as of the Closing Date with such changes, alterations, and corrections as may be approved by the City Manager of the City, such approval to be conclusively presumed by her execution thereof, is hereby approved by the Common Council and the City hereby authorizes and directs the City Manager to execute and the City Clerk to attest, under the seal of the City in one or more counter- parts the First Amendment to the Loan Agreement, confirming and amending said Loan Agreement and to deliver to the Company the Loan Agreement, as amended effective on the date of the Fixed Interest Rate, all o° the provisions of which, when executed and delivered by the City Manager as authorized herein and by the Company duly a�:thorized, shall be deemed to be a part of this Resolution as fully and to the same extent as if incorporated verbatim herein. Sec�ian 3.4 General Authorizations. The members of the Common Council and the officers, attorneys, or other agents and employees of the City are hereby authorized to do all acts and things required of them by this Resolution, the Bond Purchase Agreement, the Loan Agreement, as amended, or the Indenture, as amended, or desirable and cansistent with the requirements hereof or such Bond Purchase Agreement, Loan Agreemen� or Indenture, for the full, punctual and complete performance of all the terms, covenants and agreements 6 contained in the Bonds, the Bond Purchase Agreement, the Loan Agreement, as amended, the Indenture, as amended, and this Resolution. ARTICLE IV Deliverv of Transcri�t Section 4.1 Deliverv of Transcr%pt. The City Clerk shall furnish the Trustee, the Company and the Bond Purchase, upon request, a true transcript of all the proceedings with reference to the adoption of this Resolution, certified by said Clerk, along with such ad.ditional infonnation from the record� of the City as i� necessary to dEtermine the regular- ity and validity of the conversion of the Bonds to the Fixed Interest Rate. ARTICLE V Severabilitv Section 5.1 Severability of Invalid Provisions. if any one or more of the covenants, agreements, or provisions contained herein shall be held contrary to any eapress provi- sions of law or contrary to the policy of express law, though not expressly prohibited or against public policy, or shall for any reason whatsoever be held invalid, then such cove- nants, agreements or provisions ehall be null and void and shall be deemed separable from the remaining covenants, agreements or provisions, and shall in no way affect the validity of any of the other provisions hereof or of the conversion of the Bonds to the Fixed Interest Rate. ARTICLE VI Repealing Clause Section 6.1 Rebealing Clause. All thereof of the Issuer in conflict contained herein are, to the extent of superseded and repealed. 7 resolutions or parts with the provisions such conflict, hereby ARTICLE VII Effective Date Section 7.1 Effective Date. This Resolution shall take effect and be in force immediately upon its adoption. APPROVEll: yd�� ' Date: � -�� —,�� n, A£u;>a I?'PTEST: � �;i p —'<� � �'�� �i` P� ,l %'/i�� Date: ��7 � %S �D � Donns C. &�rwas, City Clerk ,.',• JI'. CERTIFICATION I, DONNA C. SERWAS, being first duly sworn, do hereby depose and certify that Z am the duly appointed, qualified and acting Clerk of the City of Oshkosh in the County of Winnebago, State of Wisconsin, and as such I have in my possession or have access to the complete corporate records of said City and of its Common Council; that 2 have carefully compared the transcript hereto attached with the aforesaid corporate records; the said transcript hereto attached is a true and correct and complete copy of all the corp�rate records in relation to the adoption of Resolution No. �� entitled: RESOLUTION AUTHORIZING EXECUTION OF BOND PURCHASE AGREEMENT FOR SALE AT PAR AND CO2dVER5ION TO FIXED INTEREST RATE OF $8,000,000 FLOATING RATE DEMAND INDUSTRIAL DEVELOPMENT REVENUE BONDS, MORGAN PRODUCTS LTD. ISSUE, SERIES 1984, OF CITY OF OSHKOSH, WISCONSIN, PURSUANT TO SECTION 2.02(f) OF INDENTURE OF DECEMBER 15, 1984, AS AMENDED; AND EXECUTION OF FIRST AMENDMENT TO LAAN AGREEMENT AND SECOND AMENDMENT TO TRUST INDENTURE. I hereby further depose and certify as follows: 1. Said Resolution was considered for adoption by the Common Council at a meeting held in the City Hall at 7:00 p.m. on May 15, 1986. Said meeting was a special meeting of the Common Council and was held in open session in compliance with subch. IV of ch. 19 of the Wisconsin Statutes. 2. Said Resolution was on the agenda for said meeting and public notice therof was given not less than 24 hours prior to the commencement of said meeting in compliance wich Wis. Stat. 19.84 including but without limitation by posting on the City Hall, by notice to those news media who have iiled a written request for notice of ineetings, and by notice to tiie official newspaper of the City. 3. Said meeting was called to order by Mayor Chapin, who chaired the meeting. Upon roll I noted and recorded the following Council Members were present: Council Members: Floyd R. Chapin Don H. Kutchera James A. Mather Kathleen M. Propp Thomas J. Binner Donal@ W. Pressley Killen G. Sponbauer and the following Council Members were absent: r I noted and recorded that a quorum was present. Various matters and business were taken up during the course of the meeting without intervention of any closed session. One of the matters taken up was said Resolution which was introduced and its adoption was moved by Council Member K�1:i�,Vlerw and seconded by Council Member ���(1 r . Follow- inq discussion and after all Council Members who desired to do so had expressed their views for or against said Resolu- tion, the question was called and upon roll being called and the continued presence of the quorum being noted, the recorded vote was as follows: Aye: Nay: Abstain: Whereupon the Mayor declared said Resolution adopted, and I so recorded it. 4. Said Resolution was approved by the Mayor on May 15, 1986, and i have so recorded. 5. I have caused the Resolution to be published in the form and �1acn specifiEd in said Resolution. IYd 47ITNESS WHEREOF, 2 have signed my name and affixed �he �eal of the City hereto on this 15th day of May, i986. � � � �� /�1/� % ��- ��.�� Donna C. Serwas,'City Clerk s�a�. 57.'ATE OF k`ZSCONSIN ) )ss. CJUNTY OF WINNEBAGO ) Subscribed and sworn to (�fore me th� 3, the last date written above. \ l ^ i� ��n Notary Public, taCd,� My Cc�mmission: �I -� CNo*ar?al Sea 3� n � H H K n �: r �en X� � � r � w � r � r � m rn � y � O � z t�n � (n H � � � 7 a H iJ � 0 n w a � ro n 0 a G O rr N r n a m m � � rn .,r.1 �.� f�p '�4^ �.' !